J.B.GARG, J. - (1.) DONA alias Rishi Kapur, a boy aged 15/16 years has been convicted by Sh. S.S. Tiwana, Additional Sessions Judge, Patiala, for an offence punishable under Section 376 of the Indian Penal Code on October, 1985 and he was given the benefit of the East Punjab Children Act 1949 and sent to a certified School for a period of two years or till he attained the age of majority. Aggrieved against this finding of guilt, the present appeal has been attempted.
(2.) BRIEFLY , the story of the proseuction is that on April 4, 1985, at about 10 a.m., Sonu a girl aged 5 years was enticed away by Dona alias Rishi Kapur their adjoining neighborer on the pretext that she would be given some eatables and thereafter the accused committed sexual intercourse with Sonu who raised shrieks which were heard by her mother Smt. Krishna Devi, who immediately rushed to the place of occurrence and her self saw the accused committing rape on her daughter and the accused suceeded in making good his escape. The mother proceeded to the shop known as Bhatia Cloth House where, her, husband Manohar lal had been working as a tailor for the last : several years. However, the husband was not available there and after waiting and describing the occurrence to the proprietor of the shop, she proceeded to Police Station, Sirhind and on the way Sh. Hari Parkash ASI met her and recorded her statement which took the shape of First Information Report and it reached Sirhind Police Station at 4.45 p.m. The story of the prosecution has been supported by PW1 Dr. Gurpreet Kaur, Medical Officer, Patiala, who examined Sonu daughter of Manohar Lal. PW2 Dr Romesh Chand Gupta, Senior Medical Officer, of Civil Hospital, Fatehgarh Sahib, who examined Dona alias Rishi Kapur and has- specifically stated that there was nothing to suggest that the accused was not capable of performing-sexual intercourse. PW4 Smt. Krishna Devi the mother. PW5 Sh. Dinesh Kumar Head Constable of Police Station, Sirhind, PW6 Rajinder Kumar, Draftsman, PW7 Avtar Singh Constable, PW10 Joginder Pal Bhatia, Proprietor of Bhatia Cloth House, where the complainant had gone first of all and narrated the occurrence.
(3.) THE relevant lines of the statement of PW1 Dr. Gurpreet Kaur, are as under : "Hymen was ruptured. There was slight blood stained discharge. Fresh bleeding spots were visible. No other make of injury was present on vulva." "It was on account of some penetration that there was rupture of the hymen. Sonu PW now called from outside the Court is the same girl whom I had medically examined." 5. PW 4 Smt. Krishna-Devi has described the entire occurrence which took place at about 10 A.M. on April 4, 1985 and the relevant lines of her satement are as under :- 6. "The house of Dona accused present in the Court adjoins our house and he on the pretext of giving some eatables took Sonu inside his house. I heard the shrieks of Sonu and rushed to the house of Dona who was committing rape with her. Dona-accused on seeing me managed to escape despite of the efforts made by me to catch hold, of him. Sonu was found lying on the ground in one of the rooms and her panty was found torn and her private-parts were bleeding and she was in a bad shape when I picked her up. It was at the place where I found Sonu lying that Dona accused was found, committing rape with her. I first carried Sonu to my house and thereafter carried her to the shop where my husband works as tailor master. My husband was not available at the shop. I kept waiting for him for about two three hours. Jagdish Bhatia the owner of that shop was however available at the shop and narrated the whole of the incident to him. Bhatia advised me to go to the police and to lodge a report of the occurence. I carried Sonu with me to the police post, Sirhind Mandi. I made my statement there before the police which was read over and explained to me and after admitting the same to be correct, I thumb marked thereunder." "I saw the accused lying over Sonu on the bare ground itself through the window that was lying open. That window Opens in the lane. I saw this act through the window and then entered the door ways and banged at the doors of the room." 6A. The learned counsel for the appellant has argued that the evidence of Smt. Krishna Devi the mother should not have been considered sufficient by the trial Court for recording the conviction of the accused inasmuch as she did not go straight to the Police Station and why she waited for some time at the shop where her husband was employed and the accused has been falsely implicated merely, because Manohar Lal the husband of the complainant had allegedly obtained a loan of about Rs. 1000/- from the father of the accused, who, is a painter and, he was unable to repay it. This contention is not acceptable. It was quite natural that after the occurrence, Smt. Krishna Devi, proceeded to the place of work of her husband alongwith her daughter and when her husband an ordinary tailor working on the shop of a Cloth Merchant was away and not available, she rightly proceeded towards the Police Station and the report was lodged as described above. ;